Terms of Service
Last Updated May 24, 2018
Please read these Torch Terms of Service ("Terms") carefully as they identify terms regarding your use of our products, and they form a contract between you and Torch 3D Inc. ("Torch") that governs your access and use of (a) this website ("Site"), (b) services available through the Site (" Web Apps"), and (c) software that may be downloaded to your mobile device ("Mobile Apps") (collectively, the " Services").
By accessing or using the Services, you agree that you have read, understand, and agree to be bound by these Terms, as amended from time to time. If you do not agree to be bound by these Terms, you may not access or use the Services.If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising Torch that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with Torch, in which event the terms of that contract will govern your use of the Services.
No Warranties and Limited Liability; Arbitration:These Terms provide you with certain legal rights, but you may have other, additional legal rights, which vary from jurisdiction to jurisdiction.Please note that Torch doesn't provide warranties for the Services, and these Terms limit our liability to you. Please see Sections 19 and 21 for details.Some jurisdictions do not permit the exclusion of implied warranties or the exclusion or limitation of certain damages or other rights, so those provisions of these Terms may not apply to you.These Terms require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 22 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.
- Changes to these Terms.Torch may change these Terms at any time by posting the amended Terms on the Site. Any changes to these Terms will be effective upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms). Torch may also notify you via the Services or by email to the email address associated with your account. If you do not agree to the Terms as amended, you must immediately stop using the Services and cancel your account by either using the functionality on the Site or by emailing email@example.com. Your continued use of the Services after Torch publishes or sends a notice about the revised Terms means you consent to the revised Terms.
- Access to the Services.Subject to your continued compliance with these Terms and timely payment of Fees, Torch will use commercially reasonable efforts to provide the Services to you on a non-exclusive, non-transferable, and revocable basis. Torch reserves the right to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time. Torch may add or remove functionalities or features of the Services, or suspend or stop a Service altogether, at any time and without prior notice to you.
- Your Account. To obtain access to certain Services, you may be required to obtain an account by completing a registration form and designating a user ID and password. Until you obtain an account, your access to the Services may be limited to the areas of the Services, if any, that Torch makes available to the general public. When registering with Torch you will: (a) provide true, accurate, current and complete information about yourself as requested by the registration form and (b) maintain and promptly update such information to keep it true, accurate, current and complete. Only you may use your Torch account, except that if you are an entity, you may permit your employees to use your Torch account solely for your benefit. You will keep your account and passwords confidential and not authorize any third party to access or use the Services on your behalf, unless Torch provides an approved mechanism for such use (such as to your employer if your employer has administered your account). If an organization provided you with your account (e.g., an employer), this organization has rights to your account and may: (a) manage your account (including suspending or canceling it); (b) reset your password; (c) view your usage and profile data, including how and when your account is used; and (d) manage the Content in your account. You will promptly contact Torch if you suspect any misuse of your account or any security breach in the Services has occurred.You are responsible for all activities that take place with your account. Torch will not be liable for any loss or damage arising from any unauthorized use of your account.
- Account Email Address. You get to choose what email address you register for an account. If the domain of the email address associated with your account is owned or controlled by an organization (such as your employer) and that organization establishes a direct relationship with Torch and wants to add your account to such relationship, then your account may be added to that organization's account after notification. Following that notice, if you choose not to change the email address associated with your account, your account will be controlled by the organization.
- Consent to Electronic Communications.By registering with Torch or signing up for the Services, you understand that Torch may send you information via email regarding the Services, including: (a) notices about your use or misuse of the Services, (b) updates to the Services and new products or features, and (c) promotional information and materials regarding Torch's products and services. Please review your settings in your account to control the messages you receive from Torch or unsubscribe by following the instructions in the message. Notices emailed to you will be considered given and received when the email is sent. If you don't consent to receive notices (other than promotional materials) electronically, you must stop using the Services.
- Content. You are responsible for all materials and information that you upload, post or otherwise transmit via the Services, including materials and information you store in your account ("Content"). As between Torch and you, you own all Content and Torch does not control, verify or endorse the Content that you or others submit to the Services. Functions of the Services may allow you to control who may access and modify your Content. If you enable the sharing of your Content with others, anyone you've shared Content with (including the general public, in certain circumstances) may have access to and the right to modify your Content. Even if you disable the sharing features, Torch will still have the right to access and use your Content as described in these Terms. You hereby grant Torch (as well as agents or service providers acting on Torch's behalf to provide the Services) the perpetual, irrevocable, worldwide, royalty-free right to use, modify, adapt, reproduce, distribute, display and disclose Content (a) to provide the Services, (b) to share your Content as you direct via the sharing features of the Services, (c) as otherwise required by law, regulation or order, (d) to respond to an emergency, or (e) as otherwise permitted by these Terms.You represent and warrant that you have all the rights in the Content necessary for you to use the Service and to grant the rights in these Terms and the storage, use or transmission of the Content doesn't violate any law or these Terms.
- Your Content Obligations. You will (a) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and (b) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access.Torch has no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.You will promptly notify Torch of any unauthorized use of any of your Content, your account or the Services that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Torch with such cooperation and assistance related to any such unauthorized use as Torch may reasonably request.
- Content Storage; Inability to download output. The Service is provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States. Torch reserves the right to store and process the Content and personal information outside of the United States.The Services are not intended to be a data storage or backup service; and, the Content you provide may be destroyed or altered in connection with the provision of the Services. You may not be able to retrieve the Content you provide to the Service. You are responsible for and will maintain independent copies of all Content, including backup copies outside of the Service. The 3D models produced by the Services are intended to be viewable only by using the Services; and, are not currently able to be stored, viewed or exported outside of the Services.
- Acceptable Use. You will not (and will not allow others to): (a) use the Services to harm, threaten, or harass others or Torch; (b) damage, disable, overburden, or impair the Service (or any network connected to the Services); (c) resell or redistribute the Services or any part of it; (d) use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; (e) use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Torch) to access or use the Services; (f) use the Services beyond the features allocation and amounts provided in that Service or in violation of our fair use policy; (g) use the Services to violate any law of distribute malware or malicious Content; (h) distribute, post, share information or Content that is illegal or for which you do not have sufficient rights ; (i) reverse engineer, disassemble or decompile the software used to provide or access the Services, or attempt to discover or recreate the source code used to provide or access the Services, except to the extent permitted by applicable law; (j) remove, obscure or alter any proprietary rights notice pertaining to the Services; (k) access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or (l) use the Services in connection with the construction or operation of nuclear facilities, aircraft navigation, communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Services could lead to death, personal injury, or physical property or environmental damage.Torch may block or otherwise prevent delivery of any type of file, email or other communication to or from the Services or any Content to protect the Services, its customers, or to stop you from breaching these Terms.
- Term; Suspension and Termination.
- These Terms will remain in effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. Torch reserves the right to suspend or terminate your access to the Service at any time in Torch's sole discretion. You understand that if your account is suspended or terminated, you may no longer have access to the Content that is stored with the Services. Your account and the limited right to access and use the Services under these Terms will automatically terminate upon the termination of these Terms. Sections 11, 12 (for any fees due), 18, 19, 20, 21, 22 and 23 survive any expiration or termination of these Terms.
- Upon termination of this Agreement you will no longer be able to access your Content or any output of the Services.
- Fees. You will pay the fees applicable for the Services (" Fees") as quoted to you on the Site when you purchase the Services. Torch may calculate and collect taxes payable by you based on the billing information you provide at the time of purchase. You are responsible for, and will pay, all charges, related to using the purchased Services (e.g., data charges and currency exchange settlements). You will pay the Fees in U.S. Dollars. The subscription period for the Services will be as quoted to you on the Site when you purchase the Services. Monthly subscriptions will automatically renew unless you cancel the subscription at least 3 business days prior to the renewal date. Annual subscriptions will automatically renew unless you cancel the subscription prior to the renewal date. If you wish to downgrade your subscription you must do so prior to the cancellation deadline. Torch may change its prices at any time; however, the Fee will remain in force for the duration of that subscription period for which you have paid. After that period ends, your use of the Services will be charged at the then-current price. If you don't agree to these price changes, you must stop using the Services and cancel your subscription by sending an email to firstname.lastname@example.org. If you cancel, your access and use of the Services ends at the end of your current subscription period, and no refunds for previously-paid Services will be issued.If you do not cancel in accordance with these Terms, your subscription for the Services will automatically renew at the then-current price and for the same subscription period, and Torch will charge your on-file payment card or method on the first day of the renewal of the subscription period.
- Payment. You will provide Torch with current, complete, accurate and authorized payment method information. You authorize Torch to charge your provided payment method for the Services you have selected and for any other paid features that you select. Torch may bill your payment card: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if you have elected a subscription service, on a recurring basis. To the extent Torch has not received your payment, in order to bring your account up to date, Torch may bill you simultaneously for both past due and current Fees. If you do not cancel your subscription, we may automatically renew your subscription to the Services and charge you for any renewal term. You understand that failure to pay any charges or fees may result in the suspension or cancellation of your access and use of the Services.
- Trials.Unless we notify you otherwise, if you're participating in any trial period offer, you must cancel the trial Services by the end of the trial period to avoid incurring new charges. If you do not cancel your Service and Torch has notified you that the Services will convert to a paid subscription at the end of the trial period, you authorize Torch to charge your payment method for the Service.
- App Stores.The availability of the Mobile Apps is dependent on the availability of the third party mobile application store (e.g., Apple, Inc.'s App Store or Google, Inc.'s Google Play Store) where you download the Mobile Apps (each, an "App Store"). App Stores are considered Third Party Services. You may be required to accept and abide by the terms and conditions of an App Store to download and use any Mobile App. You will comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, applicable App Store terms and conditions. You acknowledge that an App Store is not responsible for any support and maintenance services with respect to the Mobile App. If any Mobile App fails to conform to any applicable warranty provided under these Terms or under applicable law, you acknowledge that no App Store has any warranty obligation except to the extent required by applicable law. You acknowledge that as between Torch and an App Store, Torch is responsible for addressing any third party claims related to the Mobile Apps and your possession or use of the Mobile Apps. You acknowledge that the owners of the App Stores, including their affiliates, are third party beneficiaries to these Terms, and that upon your acceptance to these Terms, each App Store that you use to obtain the Mobile Apps will have the right (and will be deemed to have accepted such right) to enforce these Terms against you as a third party beneficiary of these Terms with respect to the Mobile Apps. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
- Copyright Complaints and Content Removal Policy. Torch respects the intellectual property rights of others and will respond to notices of alleged copyright infringement that comply with the law. Torch reserves the right to delete or disable Content alleged to violate copyright laws or these Terms and reserves the right to terminate the account(s) of violators.
If you believe there has been a violation of your intellectual property rights, please contact Torch's designated agent for alleged copyright infringement or by sending a notice to email@example.com with the following information:
- an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- a description of where the material is located on the Services;
- your address, telephone number, and e-mail address;
- a statement of your good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and,
- a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- Proprietary Rights. Except for the limited license rights expressly provided in these Terms, Torch and its licensors and service providers have and will retain all rights, title, and interest (including all intellectual property rights) in and to the Services. Any suggestions, information or feedback provided by you to Torch regarding the Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Services) (" Feedback") is voluntary and you hereby grant to Torch a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize others to use) any Feedback without restriction.
- No Warranty. THE SERVICES AND ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TORCH AND ITS LICENSORS AND SERVICE PROVIDERS MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, (A) ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF HARMFUL COMPONENTS, TIMELY, OR SECURE OR THAT ANY INFORMATION OR RESULTS OBTAINED THROUGH THE USE OF THE SERVICES WILL BE ACCURATE, TIMELY OR ERROR-FREE, (B) ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND (C) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
- Indemnification. You will indemnify, hold harmless and defend Torch, its licensors and service providers from all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Torch arising out of or relating to any third party claim or demand that: (a) any Content or information provided by you infringes a patent, trademark, copyright or other proprietary right, or misappropriates a trade secret, of a third party, (b) your use of the Services violates any laws, rules or regulations applicable to your use of the Services, or (c) your use of the Services violates these Terms. Torch reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Torch and your will cooperate with Torch's defense of such claims. You will not to settle any such claim without Torch's prior written consent. Torch will notify you of any claim or demand that is subject to the foregoing indemnification obligations.
- Limitation of Liability.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) IN NO EVENT WILL TORCH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR: ANY INDIRECT OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR GOODWILL) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, ), ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS, OR THE USE OR MISUSE OF, OR INABILITY TO USE THE SERVICES, EVEN IF TORCH HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE AGGREGATE LIABILITY OF TORCH AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF FIVE DOLLARS ($5.00) OR THE MOST RECENT SUBSCRIPTION FEE THAT YOU PAID FOR THE SERVICES GIVING RISE TO THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
- Disputes and Arbitration.
- Governing Law. You agree that these Terms, and any claim, dispute, action, or issue arising out of or relating to them or your use of the Services is governed by the Federal Arbitration Act, applicable federal law, and the laws of the State of Oregon without reference to conflict of laws principles. Unless a dispute would be governed by an applicable arbitration clause, you agree to submit to the personal jurisdiction of the state and federal courts in or for Multnomah County, Oregon for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, Torch may seek injunctive or other equitable relief to protect its (or its licensors or service providers') confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any such action or proceeding.
- Arbitration. Any dispute or claim relating in any way to these Terms or your access or use of any Services will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. Arbitration will take place in Portland, Oregon, U.S.A. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator can award on an individual basis the same damages and relief as a court, including injunctive and declaratory relief or statutory damages, and must follow the provisions of this Agreement as a court would.
- Initiation of Arbitration. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: Torch 3D Inc., 3519 NE 15th Ave, #125, Portland, Oregon, 97212, ATTN: Legal Department. Your notice to Torch must: (i) provide your name, mailing address, and email address; (ii) describe the dispute; and (iii) state the relief you are requesting. The arbitration will be conducted by the American Arbitration Association (" AAA") under its rules. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules.
- WAIVER OF CLASS ACTIONS. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If, for any reason, a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in any court having jurisdiction to enjoin infringement or other misuse of intellectual property rights.
- OPTION TO OPT-OUT. To opt out of the arbitration and class-action waiver terms in this Section 22, you must notify Torch in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). You must mail your written notification to the address in Section 22(c). Subject to Section 22(f), if you do not notify Torch as outlined in this Section 22(e), you agree to be bound by the arbitration and class-action waiver provisions herein, including such provisions in any Agreement revised after the date of your first acceptance.
- You may reject any change Torch makes to Section 22 (except address changes) by sending Torch written notice within 30 days of the change by mail to the address in Section 22(c). If you do, the most recent version of Section 22 before the change you rejected will apply. It is not necessary to send Torch a rejection of a future change to this Section 22 if you had properly opted out of the arbitration and class-action waiver provisions in this Section 22 within the first 30 days after you first accepted this Agreement.
- General Legal Terms and Contact Details.
- Torch Contact Information. If you have questions about these Terms or need to contact Torch, please contact Torch via email at firstname.lastname@example.org or via mail to: Torch 3D Inc., 3519 NE 15th Ave, #125, Portland, Oregon, 97212, ATTN: Legal Department.
- Severability; Entire Agreement. Each provision in these Terms constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part of a provision) is unenforceable under or prohibited by any present or future law, then the unenforceable provision (or part of the unenforceable provision) is amended to be in compliance with such law, while preserving the intent of the original provision to the extent possible. Any provision (or part of a provision) that cannot be amended will be severed from these Terms; and, all the remaining provisions of these Terms will continue in full force and effect. This is the entire contract between you and Torch regarding the Services. It supersedes any prior contract or oral or written statements regarding your use of the Services. In these Terms: (i) the word "including" and words of similar import will mean "including, without limitation," unless otherwise specified and (ii) "or" is used in the sense of "and/or"; "any" is used in the sense of "any or all".
- Assignment.These Terms and any associated rights or obligations, may not be assigned or otherwise transferred by you without Torch's prior written consent. These Terms may be assigned by Torch without restriction. These Terms are binding upon any permitted assignee.
- No Waiver.All waivers by Torch will be effective only if provided in writing. Any failure or delay by Torch to strictly enforce any provision of these Terms will not operate as a waiver of that provision, any other provision, or any subsequent breach of that or any other provision.
- Government Users.The Services are comprised of commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services and software contained therein were developed fully at private expense. All other use is prohibited.
- Export Compliance.The Services are subject to the export control laws, regulations and orders of the United States and may be subject to the export or import control laws and regulations of other countries. You will comply with all such laws and regulations that apply to the Services. These laws include restrictions on destinations, end users, and end use. You represent and warrant that you: (i) are not a citizen, national or resident of, nor under the control of, the government of Cuba, Iran, North Korea, Syria, Sudan, or any other country to which the United States has prohibited export, (ii) are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor listed on the United States Department of Commerce Table of Denial Orders, nor any other United States Government exclusion lists, (iii) are not under the control of or an agent for anyone on such lists or the entities listed above, (iv) will not export or re-export any portion of the Services, directly, or indirectly, to the above-mentioned countries or to citizens, nationals, or residents of those countries or to persons on the above mentioned lists, and (v) will not use the Services for, and will not allow the Services to be used for, any purposes prohibited by United States law, including for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.